Herbert Smulls, 56, was sentenced to death for killing a jeweler and badly injuring his wife in 1991. / Missouri Department of Corrections

by Mary Beth Marklein, USA TODAY

by Mary Beth Marklein, USA TODAY

A Missouri man has been executed for the fatal shooting of a jeweler in a 1991 robbery in spite of last-ditch efforts in the courts to halt it.

The death of Herbert Smulls, 56, marked the state's third lethal injection is three months and came after the U.S. Supreme Court has denied last-minute requests to block the execution. Smulls died at the state prison in Bonne Terre and was pronounced dead at 10:20 p.m. Wednesday.

Earlier, the high court issued a temporary stay less than three hours before Smulls was scheduled to be executed at 12:01 a.m. Wednesday.

But the court lifted the stay without explanation late Wednesday afternoon, clearing the way for the execution.

The ruling could signal how much information states must disclose regarding the drugs they use for lethal injections in death-penalty executions.

The execution had been scheduled for 12:01 a.m. Wednesday, but that changed late Tuesday night after his lawyer, Cheryl Pilate, made last-minute pleas to spare his life.

Pilate focused on the state's refusal to disclose the name of the compounding pharmacy that produces a lethal-injection drug, pentobarbital, for use in the execution. Pilate says the state's secrecy in Smulls' case makes it impossible to know whether the drug could cause pain and suffering during the execution. Missouri has argued that the compounding pharmacy is part of the execution team and therefore its name cannot be released to the public.

St. Louis County prosecutor Bob McCulloch said talk about the drug is a smokescreen aimed at sparing the life of a cold-blooded killer. Smulls, 56, was convicted and sentenced to death for killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery. McCulloch noted that several courts have already ruled against Smulls, including the U.S. District Court in Kansas City and the 8th U.S. Circuit Court of Appeals. Gov. Jay Nixon denied clemency Tuesday evening.

Pentobarbital, a barbiturate used to euthanize household pets, is considered controversial because it is little regulated and, if contaminated, can cause prolonged and extreme pain. Death penalty opponents say it causes undue agony and therefore violates the condemned killer's constitutional protection from cruel and unusual punishment.

The final words of Oklahoma death row inmate Michael Lee Wilson, who was executed this month by lethal injection with pentobarbital, reportedly were, "I feel my whole body burning." In Texas, which began using the compounded pentobarbital last fall, convicted felon Edgar Tamayo, a Mexican citizen, was put to death last week by a lethal injection that included pentobarbital despite pleas from the State Department to halt the punishment.

Some of the nation's 32 death penalty states have turned to pentobarbital because sodium thiopental, an anesthetic they had been using, is no longer available. The European Union barred German and Danish drugmakers from selling it to U.S. prisons in 2011, the same year the lone U.S. supplier, Hospira, stopped making it.

Ohio had planned to use pentobarbital in the execution of condemned killer Dennis McGuire but applied a different mix of drugs, never before used in the United States, because it was unable to obtain the pentobarbital. At his execution Jan. 16, McGuire reportedly made loud snorting noises during the execution, which lasted 25 minutes - the longest-lasting execution in Ohio since it resumed capital punishment in 1999.

In Louisiana, where convicted killer Christopher Sepulvado is sentenced to die by lethal injection Feb. 5, the Louisiana Department of Corrections this week confirmed that it is abandoning its attempt to find pentobarbital for its lethal injections and instead will apply a new procedure - the same one used in Ohio.

Lawmakers in some death penalty states, including Wyoming and Virginia, are considering reviving earlier execution methods - firing squads, electrocutions and gas chambers - that were phased out under the theory that lethal injection was more humane.

Currently, all death-penalty states use legal injection, says Richard Dieter, executive director of the Death Penalty Information Center, a Washington, D.C.-based non-profit that opposes capital punishment. He says the lack of transparency "leaves the defendant in the lurch" and prevents lawyers from mounting a full defense, "especially when the game keeps changing."

Missouri had used a three-drug execution process since 1989, until the drugmakers stopped selling those drugs for executions. Missouri eventually switched late last year to pentobarbital. Pentobarbital was used to execute two Missouri inmates late last year, and neither showed visible signs of distress.

Compounding pharmacies custom-mix drugs for clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states.

On Tuesday, Pilate said previous testimony from a prison official indicates that the state stores the drug at room temperature, which could taint the drug and potentially cause it to lose its effectiveness.

Pilate also said she and her defense team used information obtained through open-records requests and publicly available documents to determine that the compounding pharmacy is The Apothecary Shoppe, based in Tulsa. In a statement, The Apothecary Shoppe would neither confirm nor deny that it makes the Missouri execution drug.

Smulls had already served prison time for robbery when, on July 27, 1991, he went to F&M Crown Jewels in Chesterfield and told the owners, Stephen and Florence Honickman, that he wanted to buy a diamond for his fiancée. He took 15-year-old Norman Brown with him.

Once in the shop, Smulls began shooting. The robbers took rings and watches, including those that Florence Honickman was wearing.

She was shot in the side and the arm, and survived by feigning death while lying in a pool of her own blood. Her 51-year-old husband died.

Police stopped Smulls 15 minutes later, and they found stolen jewelry and weapons in his car. Florence Honickman identified the assailants. Brown was convicted in 1993 of first-degree murder and other charges, and sentenced to life without parole. Smulls got the death penalty.

Follow @mbmarklein on Twitter

Contributing: The Associated Press; Gary Strauss

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